New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

DAVID BROWN v. RUTH JOHNSON, Commissioner, Tennessee Department of
Revenue
Court:TCA
Attorneys:
Paul G. Summers, Attorney General and Reporter, and Sean D. Clancy,
Assistant Attorney General, for the appellant, Ruth Johnson,
Commissioner, Tennessee Departiment of Revenue, State of Tennessee.
Doyle F. Richardson, Tullahoma, Tennessee, for the appellee, David B.
Brown.
Judge: INMAN
First Paragraph:
Taxpayer purchased baled straw from farmers which he sold to
landscapers, sales tax free. A Notice of Assessment was served on the
taxpayer for the sales tax, plus penalty and interest. After payments
of these amounts taxpayer filed suit for refund, challenging the
assessments. The trial judge found that the sales taxes were properly
assessed, but that both interest and penalty should be waived. Both
parties appeal. We hold that the taxpayer is liable for the tax
together with penalty and interest.
http://www.tba.org/tba_files/TCA/browndavidb.wpd
WALTER W. CARLEN, SR., et al. v. RONALD E. JACKSON
Court:TCA
Attorneys:
Ellis A. Sharp and Jon M. Cope, Knoxville, Tennessee, for the
appellant, Ronald E. Jackson.
J. Ford Little and Luis C. Bustamante, Knoxville, Tennessee, for the
appellees, Walter W. Carlen, Sr. and Linda Carlen.
Judge: INMAN
First Paragraph:
The defendant asserted a comparative fault defense to a tort claim
against him arising from his operation of a truck. He attributed
fault to General Motors Corporation and Carlen Motors Inc. the
manufacturer and prospective seller, respectively, of the truck. The
defendant did not respond timely to a request for admission and
summary judgment was entered that the defendant could not assert the
affirmative defense attributing fault to General Motors and Carlen
Motors Inc.
http://www.tba.org/tba_files/TCA/carlenwalterw.wpd
CHARLES DAVID KILLION v. JOHNNY HUDDLESTON
Court:TCA
Attorneys:
Harry R. Cash, Chattanooga, Tennessee, for the appellant, Johnny
Huddleston.
Wayne Detring, Hendersonville, Tennessee, for the appellee, Charles
David Killion.
Judge: INMAN
First Paragraph:
This is an action for damages for negligent misrepresentation. The
plaintiff invested $50,000.00 in Eureka Vacuum Cleaner Company at the
advice and urging of the unlicensed defendant who was to receive a
substantial commission. The investment was a scam. Recovery for the
loss was allowed. We affirm.
http://www.tba.org/tba_files/TCA/killioncd.wpd
PILGRIM EMMANUAL BAPTIST CHURCH v. ALBERT BUCKINGHAM, et al.
Court:TCA
Attorneys:
Terry R. Clayton, Nashville, Tennessee, for the appellant, Albert
Buckingham.
Cyrus L. Booker, Nashville, Tennessee, for the appellee, Pilgrim
Emmanuel Baptist Church.
Judge: INMAN
First Paragraph:
The parties agreed to the consolidation of two cases for trial and
appellate proceedings. The plaintiffs in each case sought broad
injunctive relief to correct alleged irregularities in the affairs of
the church. All named parties, plaintiffs and defendants, were
enjoined from disturbing or disrupting any worship service or church
meeting, and certain safeguards were placed on church funds and
property. Thereafter, the church moved for summary judgment which was
granted, thus effectively terminating the litigation. Mr. Buckingham
appeals.
http://www.tba.org/tba_files/TCA/pilgrambaptistchurch.wpd
DOLORES E. ROSSELLO v. MICHAEL MAGILL, Commissioner
Court:TCA
Attorneys:
Peter Skeie, Nashville, Tennessee, for the appellant, Dolores E.
Rossello.
Paul G. Summers, Attorney General and Reporter; and Douglas Earl
Dimond, Assistant Attorney General, for the appellee, Michael Magill,
Commissioner, Tennessee Department of Labor and Workforce Development,
Division of Employment Security.
Judge: INMAN
MEMORANDUM OPINION
The judgment of the Chancery Court is affirmed pursuant to Rule 10,
Rules of the Court of Appeals.
The appellant was employed by a law firm as a paralegal and assigned
to work for a specific attorney, Laura Stewart. She worked about two
months before she was terminated.
If Ms. Rossello voluntarily quit her job without good cause, she is
disqualified from receiving unemployment benefits. Tenn. Code Ann. S
50-7-303(a)(1). She insists that she was fired, and hence entitled to
benefits, stating that she "could no longer work under circumstances
where I was being verbally and emotionally abused by Laura Stewart."
The employer insists that Ms. Rossello voluntarily quit.
She was initially denied benefits by the Department, which thereafter
determined that she was entitled to benefits. The employer appealed
to the DES Appeals Tribunal whose Referee conducted a hearing on
February 24, 2000. The evidence was conflicting on the issue of
whether Ms. Rossello quit her job, or was discharged for misconduct,
but she conceded that she had stated to Ms. Haas, a member of the law
firm, that she would not work for Laura Stewart under any
circumstances.
The Appeals Referee found that Ms. Rossello voluntarily quit her job,
and that she was not harassed by anyone. The Board of Review affirmed
the Appeals Tribunal. On petition for certiorari, the Chancery Court
affirmed the Board of Review.
If the decision of DEC is supported by material evidence, the Courts
must affirm. Tenn. Code Ann. S 50-7-303(a)(1). Substantial and
material evidence is "any relevant evidence which a reasonable mind
might accept to support a rational conclusion, and which furnishes a
reasonably sound basis for the action being reviewed." Frogge v.
Davenport, 906 S.W.2d 920 (Tenn. Ct. App. 1995). This record reflects
substantial and material evidence reinforced by a determination of
credibility of the witnesses. See, Price v. Tennessee Civil Service
Commission, 1997 WL 203603. (Tenn. Ct. App. 1997).
The judgment is affirmed at the costs of the appellant, Dolores E.
Rossello.
http://www.tba.org/tba_files/TCA/rossellodolores.wpd
TOMKATS CATERING, INC. v. RUTH E. JOHNSON, Commissioner of Revenue,
State of Tennessee
Court:TCA
Attorneys:
Charles A. Trost and Michael G. Stewart, Nashville, Tennessee, for the
appellant, TomKats Catering, Inc.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Sean D. Clancy, Assistant Attorney General, for
the appellee, Ruth E. Johnson, Commissioner of Revenue, State of
Tennessee.
Judge: INMAN
First Paragraph:
This is a sales tax case. The tax period is from December 1, 1990
through January 31, 1994. During this period TomKats, a catering
business, charged its customers a fixed, per unit price for food, but
provided optional services - waiters, bartender, bar backs, show
chefs, valets - for an additional charge, which was billed separately.
The Commissioner ruled that such optional services were a "part of
the sale," and assessed a tax deficiency which TomKats paid and filed
this action for a refund which was unavailing. The judgment is
reversed.
http://www.tba.org/tba_files/TCA/tomkatscatering.wpdSTATE OF TENNESSEE v. SCOTT RAY ANDERSON
Court:TCCA
Attorneys:
Steve McEwen, Mountain City, Tennessee (on appeal); Raymond Mack
Garner, District Public Defender; and Shawn G. Graham, Assistant
District Public Defender (at trial), for the appellant, Scott Ray
Anderson.
Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan,
Assistant Attorney General; Michael L. Flynn, District Attorney
General; and William R. Reed, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
The defendant appeals the judgment entered by the Circuit Court of
Blount County revoking his community corrections sentence. The sole
issue on appeal is whether the court abused its discretion in ordering
the defendant to serve the remainder of his sentence in the
penitentiary. After careful review, we affirm the trial court's
judgment.
http://www.tba.org/tba_files/TCCA/andersonscottr.wpd
STATE OF TENNESSEE v. DANIEL PAUL BATCHELOR
Court:TCCA
Attorneys:
Julie A. Rice (on appeal), Knoxville, Tennessee; and Richard Hughes,
Assistant Public Defender (at trial), Cleveland, Tennessee, for the
Appellant, Daniel Paul Batchelor.
Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; Jerry N. Estes, District Attorney General;
and Sandra Donaghy, Assistant District Attorney General, for the
Appellee, State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
Following a bench trial, the Defendant was convicted of hindering a
secured creditor, a Class E felony. On appeal, the Defendant alleges
that the evidence is insufficient to support the conviction. After a
careful review of the record, we conclude that the evidence is
sufficient and affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/batchelordp.wpd
ROGER WAYNE BRADEN v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Roger Wayne Braden, Wartburg, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; and William H. Cox III, District Attorney
General, for the appellee, State of Tennessee.
Judge: WILLIAMS
First Paragraph:
On April 29, 1999, the petitioner's status on community corrections
was revoked and he was resentenced. On May 15, 2000, he filed a pro
se post-conviction relief petition. The issue is whether the petition
is time-barred by the Tennessee Code Annotated section 40-30-202.
Because the revocation and resentencing became final thirty days after
its entry, which was May 29, 1999, as the State concedes, and we
agree, the petition was timely filed. We reverse the summary
dismissal of the petition and remand for further proceedings
consistent with this opinion.
http://www.tba.org/tba_files/TCCA/bradenrw.wpd
STATE OF TENNESSEE v. SANDRA BROWN
Court:TCCA
Attorneys:
John B. Nisbet, III, Cookeville, Tennessee, for the appellant, Sandra
Brown.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; William Edward Gibson, District Attorney
General; and William M. Locke, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: RILEY
First Paragraph:
The defendant appeals the judgment of the trial court revoking her
probation. She raises two issues: (1) whether the evidence supported
the trial court's finding that she violated the terms of her probation
by committing the offense of accessory after the fact; and (2) whether
the trial court had the authority to order her to continue her
supervised probation pending this appeal. After a thorough review of
the record, we find both issues have merit; therefore, we reverse the
judgment of the trial court.
http://www.tba.org/tba_files/TCCA/browns.wpd
STATE OF TENNESSEE v. CHARLES R. FRANCIS
Court:TCCA
Attorneys:
Joe H. Walker, District Public Defender; and Walter B. Johnson, II,
Assistant Public Defender, for the appellant, Charles R. Francis.
Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann,
Assistant Attorney General; J. Scott McCluen, District Attorney
General; Roger Delp, Assistant District Attorney General; and Frank
Harvey, Assistant District Attorney General, for the appellee, State
of Tennessee.
Judge: WOODALL
First Paragraph:
In an indictment returned by the Morgan County Grand Jury, Defendant,
Charles R. Francis, was charged with fourth offense DUI. Count 1 of
the indictment alleged that the triggering offense of DUI occurred on
December 10, 1998. Count 2 of the indictment alleged that he had
previously been convicted of DUI on three separate occasions in Morgan
County, Tennessee. The Defendant entered a "blind plea" to DUI,
fourth offense, and sentencing was submitted to the trial court for a
later hearing. At the sentencing hearing, the trial court ruled that
Defendant was convicted of the Class E felony of DUI, fourth offense,
ordered a sentence of two (2) years, with service by split confinement
of 150 days in the county jail, and the balance of the sentence to be
served in the Community Corrections program. Asserting that he should
have been sentenced for commission of a Class A misdemeanor DUI,
fourth offense, rather than a Class E felony, Defendant has appealed.
The original judgment entered by the trial court reflected conviction
of a Class A misdemeanor, but the judgment was later amended to
reflect conviction of a Class E felony, in accord with the trial
court's ruling at the conclusion of the sentencing hearing. We affirm
the amended judgment of the trial court.
http://www.tba.org/tba_files/TCCA/francischarles.wpd
(CORRECTED OPINION) STATE OF TENNESSEE v. TRACY GOBER
Court:TCCA
Attorneys:
Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; Jerry N. Estes, District Attorney General;
and Joseph Victor Hoffer, Assistant District Attorney General, for the
appellant, State of Tennessee.
Jerry Hoffer, Cleveland, Tennessee, for the appellee, Tracy Gober.
Judge: WILLIAMS
First Paragraph:
The issue is how to compute the number of prior offenses available for
consideration in determining multiple offender status pursuant to
Tennessee Code Annotated section 55-10-403(a)(3). We conclude to
compute the number of prior convictions available for consideration,
the court must first determine whether the defendant has any prior
convictions occurring within ten years of the date of the instant
conviction. If so, all prior convictions shall be counted occurring
within twenty years of the date of the instant conviction provided no
period greater than ten years has elapsed between any two preceding
prior convictions. An example is contained in the opinion. We
reverse the trial court's order amending the indictment to charge
third offense and reinstate the original indictment charging ninth
offense driving under the influence.
http://www.tba.org/tba_files/TCCA/gobert.wpd
STATE OF TENNESSEE v. DAVID D. HARRIS
Court:TCCA
Attorneys:
Paul G. Summers, Attorney General and Reporter; Russell S. Baldwin,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Charles A. Carpenter, Assistant District Attorney
General, for the appellant, State of Tennessee.
Lionel R. Barrett, Jr., and Jefre S. Goldtrap, Nashville, Tennessee,
for the appellee, David D. Harris.
Judge: MCGEE OGLE
First Paragraph:
The State appeals the judgment of the Davidson County Criminal Court
suspending the appellee's sentences for aggravated robbery and
granting the appellee probation for a term of twenty-four years.
Following a review of the record and the State's brief, we reverse the
judgment of the trial court and remand this case for proceedings
consistent with this opinion.
http://www.tba.org/tba_files/TCCA/harrisdd.wpd
STATE OF TENNESSEE v. JANET LAWSON
Court:TCCA
Attorneys:
Cynthia S. Lyons, Assistant Public Defender, Cookeville, Tennessee,
for the Appellant, Janet Lawson.
Paul G. Summers, Attorney General and Reporter; Mark E. Davidson,
Assistant Attorney General; William Edward Gibson, District Attorney
General; and Anthony J. Craighead, Assistant District Attorney
General, for the Appellee, State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
The Defendant pled guilty to one count of theft over $1,000.00 and the
trial court sentenced her as a Range I standard offender to three
years probation. The Defendant appeals from the revocation of her
probation, contending that the trial court abused its discretion by
ordering her to serve the remainder of her sentence in confinement.
Because we conclude that the record supports that trial court's
decision to revoke the Defendant's probation, we affirm the judgment
of the trial court.
http://www.tba.org/tba_files/TCCA/lawsonj.wpd
STATE OF TENNESSEE v. ROBERT MORROW
Court:TCCA
Attorneys:
Edward C. Miller, District Public Defender; Susanne Bales, Assistant
Public Defender (on appeal); and Edward C. Miller, Assistant Public
Defender (at trial), for the Appellant, Robert Morrow.
Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann,
Assistant Attorney General; Alfred C. Schmutzer, Jr., District
Attorney General; and James B. Dunn, Assistant District Attorney
General for the Appellee, State of Tennessee.
Judge: WITT
First Paragraph:
The defendant entered a best-interest guilty plea in the Cocke County
Criminal Court to one count of especially aggravated kidnapping, two
counts of aggravated rape, and one count of criminal exposure to HIV.
The trial court sentenced the defendant as a Range I standard offender
to six years incarceration in the Tennessee Department of Correction
for the criminal exposure to HIV conviction, as a violent offender to
24 years incarceration for the especially aggravated kidnapping
conviction, as a violent offender to 24 years incarceration for one of
the aggravated rape convictions, and as a multiple rapist to 24 years
incarceration for the other aggravated rape conviction. The trial
court ordered consecutive service of the sentences for an effective
sentence of 78 years incarceration. On appeal, the defendant takes
issue with the length of the sentences and the consecutive service
imposed. Based upon our review, we affirm the sentences imposed.
http://www.tba.org/tba_files/TCCA/morrowr.wpd
STATE OF TENNESSEE v. MORRIS JASON PEPPER
Court:TCCA
Attorneys:
John B. Nisbet, III, Cookeville, Tennessee; Donna Orr Hargrove and
Andrew Jackson Dearing, III, Fayetteville, Tennessee, for the
appellant, Morris Jason Pepper.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; W. Michael McCown, District Attorney
General; Weakley E. Barnard and Ann L. Filer, Assistant District
Attorneys General, for the appellee, State of Tennessee.
Judge: MCGEE OGLE
First Paragraph:
The appellant, Morris Jason Pepper, was convicted by a jury in the
Lincoln County Circuit Court of one count of first degree premeditated
murder and was sentenced to life imprisonment. On appeal, the
appellant raises the following issues for our review: (1) whether the
evidence is sufficient to sustain his conviction; and (2) whether the
trial court erred by failing to grant the appellant's motion to
suppress. Upon review of the record and the parties' briefs, we
affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/pepperm.wpd

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